New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

JESSIE M. FREDERICK v. BOWEVIL EXPRESS, INC., et al.
Court:TSC - Workers Comp Panel
Attorneys:
Gregory D. Jordan and L. Beth Williams, Jackson, Tennessee, for the
appellant, Bowevil Express, Inc.
Michael A. Jaynes and Danny R. Ellis, Jackson, Tennessee, for the
appellee, Jessie M. Frederick.
Judge: LOSER
First Paragraph:
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. In this
appeal, the employer insists the award of permanent partial disability
benefits based on 25 percent to the left arm is excessive. As
discussed below, the panel has concluded the judgment should be
affirmed.
http://www.tba.org/tba_files/TSC_WCP/frederickjessie.wpdALFRED LEE BOWLING v. DOBBS BROTHERS BUICK-PONTIAC, INC., d/b/a DOBBS
BROS. BUICK-PONTIAC/MITSUBISHI, INC.
Court:TCA
Attorneys:
Connie Westbrook, Memphis, Tennessee, for the appellant, Alfred Lee
Bowling.
James Stephen King, Memphis, Tennessee, for the appellee, Dobbs
Brothers Buick-Pontiac, Inc., d/b/a Dobbs Bros.
Buick-Pontiac/Mitsubishi, Inc.
Judge: FARMER
First Paragraph:
This appeal arises from the trial court's denial of a motion in
limine. Employee was fired from his position at Company. At a
pre-trial deposition, Manager testified on behalf of Company that
Employee was terminated due to Manager's observation of Employee's
lack of sales skills. Employee filed a motion seeking to bar
testimony of other Company employees during the trial. These
employees were to testify on Employee's lack of sales skills.
Employee argued that this testimony would be inconsistent with
Company's pre-trial deposition that Employee was terminated due to
Manager's observation of his lack of sales skills. We affirm.
http://www.tba.org/tba_files/TCA/bowlingalfredl.wpd
THOMAS C. FARNSWORTH, JR. v. GARY P. FAULKNER, et al.
Court:TCA
Attorneys:
Stuart B. Breakstone, Memphis, Tennessee, for the appellant, Gary P.
Faulkner, individually and doing business as Faulkner's Body Shp,
Inc., a/ka Gary Faulkner Body Shop, Inc.
E. Nicole Trail, Memphis, Tennessee, for the appellee, Thomas C.
Farnsworth, Jr.
Judge: FARMER
First Paragraph:
This appeal arises from the trial court's granting of a motion of
summary judgment. The court ruled that Shop had violated an Agreement
which incorporated in its entirety a previous lease of certain
property. As a result, Owner was awarded the repair costs for certain
repairs that Shop had been responsible for under the lease. Owner was
also awarded attorney's fees and expenses. Shop appealed, arguing that
certain material facts were in dispute and thus summary judgment was
inappropriate. We affirm in part and reverse in part.
http://www.tba.org/tba_files/TCA/farnsworththomasc.wpd
IN RE: ESTATE OF GLORIA ELEANOR FRANKLIN
Court:TCA
Attorneys:
Mark A. Cowan, Morristown, Tennessee, for the appellant, W. Jess
Waltman.
Roy T. Campbell, Jr., Newport, Tennessee, for the appellee, Estate of
Gloria Eleanor Franklin, Edward Manning, Administrator.
Judge: SUSANO
First Paragraph:
This is apparently a case of first impression. The appellant, W. Jess
Waltman, filed a petition in the trial court seeking to probate a
document purporting to be the last will and testament of Gloria
Eleanor Franklin ("the decedent"). The will, dated "July 7 93,"
directs that the appellant and his wife, Terry Waltman, are to receive
the decedent's estate "in case I die on my way to & from Jersey." The
trial court held that the will was not eligible for probate because it
was a conditional will and the specified condition or contingency,
i.e., Ms. Franklin's demise "on the way to & from Jersey," had not
occurred. We vacate the trial court's judgment and remand for further
proceedings consistent with this opinion.
http://www.tba.org/tba_files/TCA/franklinge.wpd
IN THE MATTER OF: R.L.B., DOB: 8/17/86, J.W.B., DOB: 8/3/88, D.L.B.,
DOB: 7/23/91, AND J.L.B., DOB: 2/20/93 CHILDREN UNDER 18 YEARS OF AGE
Court:TCA
Attorneys:
Marcus M. Reaves, Jackson, Tennessee, for the appellants, R.B. and
M.B.
Paul G. Summers, Attorney General and Reporter, Daryl J. Brand,
Associate Solicitor General, for the appellee, State of Tennessee,
Department of Children's Services.
Judge: LILLARD
First Paragraph:
This case involves the termination of parental rights. The children,
four boys, were removed from the custody of their mother and father
after reports of domestic violence by the father. While the boys were
in the protective custody of the State, allegations surfaced that they
had been subjected to sexual abuse by the mother, as well as physical
abuse by the father. The trial court terminated the parental rights
of mother and father in all four boys, finding willful abandonment and
that the conditions leading to removal persisted and were unlikely to
abate. On appeal, we affirm, finding that the trial court's decision
is supported by clear and convincing evidence.
http://www.tba.org/tba_files/TCA/inmatterofrlb.wpd
IN RE: ESTATE OF FANNIE MAE JOHNSON, DECEASED
Court:TCA
Attorneys:
Paul A. Robinson, Jr., Memphis, Tennessee, for the appellant, Edna
Johnson Wright, Executrix.
Kathleen N. Gomes, Memphis, Tennessee, for the appellee, Rebecca
Moore.
Judge: FARMER
First Paragraph:
This appeal arises from the trial court's finding that a bank account
was part of Decedent's estate and not the property of Executrix. In
1987, Decedent added Executrix to a bank account. Decedent failed to
mark the portion of the card signifying that the account was to have
rights of survivorship. After Decedent died, Executrix conducted an
accounting in which she did not include the account. Beneficiary
contested the accounting arguing that account should be part of the
estate. Executrix argued that the addition of her name to the account
created a presumption that the account's right of survivorship was a
gift inter vivos. The trial court found that no presumption existed
and that the account was part of the estate. We affirm.
http://www.tba.org/tba_files/TCA/johnsonfanniemae.wpd
PEARL LYNELL POTTS, Individually And Executor of the Estate of Gordon
Ray Potts, Sr., Deceased, v. MARY POTTS MAYFORTH and GORDON RAY POTTS,
JR., and CONNECTICUT GENERAL LIFE INSURANCE COMPANY v. ALICE ELIZABETH
NELSON
Court:TCA
Attorneys:
Mary E. Potts Mayforth, Kensington, MD., pro se.
Gordon R. Potts, Jr., Forsythe, MO., pro se.
Kathryn J. Dugger-Edwards, Elizabethton, TN., for Appellee, Pearl
Lynell Potts.
Reginald E. Keaton, Knoxville, TN., for Appellee, Connecticut General
Life Insurance.
Judge: FRANKS
First Paragraph:
The Trial Court entered a Default Judgment against Potts pursuant to
Tenn. R. Civ. P. 37.02 and then summary judgment for plaintiffs. On
appeal by defendants, we affirm the Judgment of the Trial Court.
http://www.tba.org/tba_files/TCA/pottsp.wpdSTATE OF TENNESSEE v. PAUL RANDALL FREELAND
Court:TCCA
Attorneys:
Terry J. Leonard, Attorney for Appellant, Paul Randall Freeland.
Paul G. Summers, Attorney General, J. Ross Dyer, Assistant Attorney
General, G. Robert Radford, District Attorney General, and Eleanor
Cahill, Assistant District Attorney General, Attorneys for Appellee,
State of Tennessee.
Judge: CLARK
First Paragraph:
The defendant was declared a motor vehicle habitual offender in Benton
County Circuit Court. On appeal, he argues that the trial court erred
because the first qualifying underlying conviction occurred more than
five years before the date the state's petition was filed. Because no
statute of limitations applies under the Motor Vehicle Habitual
Offenders Act, we affirm the trial court's judgment .
http://www.tba.org/tba_files/TCCA/freelandpr.wpd
LEON GOINS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Thomas E. Weakley, Dyersburg, Tennessee, for the appellant, Leon
Goins.
Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford,
Assistant Attorney General; and C. Phillip Bivens, District Attorney
General, for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The petitioner appeals the denial of post-conviction relief on his
conviction for the sale of .5 grams of cocaine, a Schedule II
controlled substance. In his pro se petition for post-conviction
relief, the petitioner alleged that his trial counsel was ineffective
for failing to thoroughly investigate and keep him informed of vital
information regarding his case. After the appointment of
post-conviction counsel and a hearing on the petition, the court
denied the petition for post-conviction relief. The petitioner filed
a timely appeal to this court, raising the sole issue of whether the
post-conviction court erred in finding that he had effective
assistance of trial counsel. Based upon a careful review of the
record, we affirm the judgment of the post-conviction court.
http://www.tba.org/tba_files/TCCA/goinsleon.wpd
TERESA DEION SMITH HARRIS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Teresa McCaig Marshall, Paris, Tennessee, for the appellant, Teresa
Deion Smith Harris.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and Steven L. Garrett, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
The petitioner was originally convicted by a Henry County jury of
first degree felony murder and sentenced to life without the
possibility of parole. The conviction was affirmed on direct appeal.
The petitioner sought post-conviction relief, which was denied by the
post-conviction court. In this appeal, the petitioner contends she is
entitled to post-conviction relief based on (1) newly discovered
evidence and (2) ineffective assistance of counsel. After a thorough
review of the record, we conclude that the post-conviction court
correctly denied post-conviction relief.
http://www.tba.org/tba_files/TCCA/harristds.wpd
STATE OF TENNESSEE v. GLENDA EVA TILLEY
Court:TCCA
Attorneys:
Nat H. Thomas, Kingsport, Tennessee; and Cary Taylor, Kingsport,
Tennessee for the Appellant, Glenda Eva Tilley.
Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and J. Lewis Combs, Assistant District Attorney General for
the Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
The defendant takes issue with the trial court's imposition of split
confinement for her conviction of theft over $10,000. Based upon our
review, we affirm the sentence imposed.
http://www.tba.org/tba_files/TCCA/tilleyge.wpd

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